MINISTERS’ DEPUTIES

Decisions

CM/Del/Dec(2021)1419/H46-8

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH)

 

H46-8 S.Z. / Kolevi v. Bulgaria (Applications Nos. 29263/12 and 1108/02)

Supervision of the execution of the European Court’s judgments

 

Reference document

CM/Notes/1419/H46-8

 

Decisions

The Deputies

1.         recalled that these cases concern mainly a systemic problem of ineffective criminal investigations in Bulgaria, a failure to examine in a meaningful manner whether evidence indicated a lack of consent and whether charges for rape had to be brought and the lack of guarantees for the independence of criminal investigations concerning the Chief Prosecutor and other high-ranking officials close to him;

As concerns the individual measures

2.         recalled that no additional individual measures appear necessary in the S.Z. case; invited the authorities to provide information on the outcome of the request of the Chief Prosecutor for reopening of the criminal proceedings in the Z. case; invited them to rapidly provide information on the assessment of the Prosecutor’s Office of the feasibility of additional investigation in the Y. and X. and Others cases;

3.         invited the authorities to indicate whether the applicants have appealed against the suspension of the investigation in the Kolevi case and whether additional investigative work is done by the police or other relevant authorities to establish the perpetrator of the murder of Mr. Kolev;

As concerns the general measures in the S.Z. group of cases

4.         welcomed the authorities’ readiness to work, in consultation with the Council of Europe, on several important measures to improve the effectiveness of criminal investigations in general by the end of 2022; reiterated their call to introduce legislative or, if unsurmountable constitutional constraints are established, constitutional amendments to allow judicial review of prosecutorial refusals to open an investigation, together with arrangements to avoid an excessive workload for courts and prosecutors;

5.         invited them also to provide, in due time, information on the outcome of their deliberations on concrete measures to reduce the formalism at the trial stage (including remittals of cases to the pre-trial phase), to allow the victim to ask for acceleration of proceedings before charges are brought and to regulate in detail the re-opening of criminal proceedings; also invited them to provide an assessment of the possibility to strengthen judicial review and guarantees regarding the bringing of charges, authorise the severance of a case against numerous accused persons at the trial stage, improve practices concerning the content, examination and amendment of an indictment;

6.         as concerns the Z. case, invited the authorities to provide a review of the domestic judicial and prosecutorial practice, as well as their assessment on any additional measures needed to ensure that rape is prosecuted in a Convention compliant manner, inter alia as to the determination of non-consent and child-sensitive handling of a child’s complaint of rape; as concerns the X. and Others case, requested more extensive information on the reform initiated in November 2020, as well as on prosecutorial and judicial practice in this area, also addressing the questions identified in the analysis of the Secretariat;

As concerns the general measures in the Kolevi case

7.         welcomed the authorities’ readiness to work on rules for an independent investigation of a Chief Prosecutor and his or her Deputies by the end of 2022, in consultation with the Council of Europe; noted however that the new programme proposals, albeit positive in various respects, are not elaborated in detail, in particular as concerns the appointment, career and judicial review arrangements, and thus cannot be thoroughly assessed in some respects, and also do not respond fully to Interim Resolution CM/ResDH(2019)367 and the subsequent decisions of the Committee of Ministers, inter alia as concerns the suspension procedure of a Chief Prosecutor and the involvement of sufficient number of sufficiently independent investigators, and could only be seen as temporary solution;

8.         urged again the authorities to adopt legislative or, in the event that insurmountable constitutional obstacles are established, constitutional amendments, to fully respond to Interim Resolution CM/ResDH(2019)367 and subsequent decisions, in particular as concerns the guarantees for the independence of the person directing and supervising the investigation and the persons involved as investigators and the need toensure the involvement of sufficient number of investigators;

9          exhorted them to urgently adopt measures to reduce the Chief Prosecutor’s influence in the new Supreme Judicial Council and its Prosecutorial Chamber, to be elected in 2022, to allow introduction of an effective suspension procedure and reduce the chilling effect on persons tasked with the investigation of a Chief Prosecutor;

10.       encouraged again the authorities to provide their assessment whether procedural or institutional rules need to be amended, including as concerns extension of judicial review, to reduce to some extent a potential Chief Prosecutor’s influence within the magistracy or his or her influence within the Prosecution Office, to allow the implementation of effective investigation mechanism;

 

11.       encouraged the authorities to provide information regarding the points raised in the Secretariat’s analysis and in H-Exec(2021)20 and H-Exec(2021)21 and decided to resume the consideration of the cases from this group, together or separately, at the latest at their 1436th meeting (June 2022) (DH).